In 2006, six animal activists of the group Stop Huntingdon
Animal Cruelty (SHAC) were convicted of terrorism under the
Animal Enterprise Protection Act and sent to federal prisons
across the United States.

Did they kill anybody? No. Did they cause physical harm to
anybody? No. What they did was apparently more dangerous:
they caused a significant loss of profits to a powerful
laboratory at which nonhuman animals are subjected to horrific
experiments which test household products, pharmaceuticals,
foods, and other products.

A new crime: animal enterprise terrorism
After a series of amendments, the “Animal Enterprise
Protection Act” became the “Animal Enterprise Terrorism Act”
(AETA). Whereas the prior emphasis seemed to be on the
protection of animal enterprises, the new emphasis is on the
terrorists who target the animal enterprises. The linguistic
shift thus highlights the trend away from passively protecting
animal enterprises (indeed the former statute had been applied
only a handful of times) toward aggressively prosecuting
animal activists.

The AETA gives federal agencies the authority to arrest,
prosecute, and convict individuals who engage in acts that
threaten “animal enterprises”. As defined by the AETA, an
“animal enterprise” includes commercial or academic
enterprises that use or sell animals or animal products for
profit, food or fiber production, agriculture, education,
research, or testing; zoos, aquaria, pet stores, breeders,
furriers, circuses, or rodeos; or any other enterprise that is
“intended to advance agricultural arts and sciences.”

The AETA criminalizes any act that crosses state lines
(obviously including all internet communication) that is
intended to damage an animal enterprise or interfere with its
operations. Conspiring to attempt such an act (but not
personally undertaking it) is also a violation. The law
addresses criminal acts against property or persons. Under the
AETA, criminal actions that damage property or cause property
loss include damaging, manipulating, or taking records;
defacing, dismantling, or destroying real property (a
building, its structure, or its locks, windows, doors, etc.);
and injuring, taking, or releasing nonhuman animals.
Significantly, property loss includes costs that reduce
profits—such as the costs of replacing damaged property,
repeating an interrupted experiment, or increasing security in
response to intimidation of anyone connected with the
enterprise. Should you be found to have violated the AETA, you
would be subject to restitution – essentially paying back the
animal enterprise for such costs. Acts against a person
include those against someone who works for the animal
enterprise, that person’s partner, or a member of that
person’s immediate family. Under the AETA, it is criminal to
intentionally place such a person in reasonable fear of
serious bodily harm or death by harassing, intimidating, or
threatening him/her; trespassing on his/her property; or
damaging his/her real or personal property.
Under the AETA, activists can be found criminally liable for
reducing the financial well-being of clients, insurance
companies, banks, health providers, accounting firms,
shareholders, market makers, and internet providers who do
business with individuals or entities targeted by activists
for abuse of nonhuman animals. Penalties for violating the
AETA range from significant fines to 20 years’ imprisonment.

The constitutional failures of the Animal Enterprise Terrorism
Act

The First Amendment of the United States Constitution requires
that law enforcement focus on the criminal acts themselves, as
opposed to the political views of the actors. Once law
enforcement has selectively prosecuted and silenced
individuals based on their political beliefs rather than on
their actions, a grave constitutional violation has occurred.
The AETA violates activists’ right to freedom of speech. The
text of the Constitution itself provides a remarkable
framework for the ideals of our founding fathers. That text
was ratified only with the assurance that the Bill of Rights,
which includes the First Amendment, would attach. Our
Constitution’s principles of freedom inherent in the First
Amendment dictate that we must have an expansive marketplace
of ideas in which to publish agreement, dissent, and opinion,
because only through the unrestricted publications of
citizens’ ideas can truth prevail.

Freedom of speech is thus considered by the courts to be vital
for political, social, and economic reform. The Constitution’s
protection of speech is essentially a commitment of the
government to abstain from inhibiting the free expression of
ideas, which thereby ensures the continued building of
politics and culture.

A bedrock principle of the First Amendment is that the
government may never restrict expression on the basis of the
ideas that it conveys, however unpopular those ideas may be.
Suppression of speech based on its content completely
undermines the profound national commitment to the principle
that debate on public issues should be uninhibited; it is also
considered, in the courts’ own words, “governmental thought
control.”

It is well established that when the speaker’s views differ
from what the government perceives to be the larger societal
view, that speaker’s ideas deserve paramount constitutional
protection. The message that nonhuman animals should not be
abused and exploited certainly pales in comparison to the
larger, majority view that nonhuman animals are the property
of humans and thus may be used for food, clothing, science,
entertainment, or however else those profiting from such use
see fit.

Thus, the message against animal exploitation should receive
optimum constitutional protection. The very existence of a
statute like the AETA, however, is proof that the animal
activists’ message is being denied such protection.
The United States Supreme Court has also affirmed that a
person’s speech cannot be inhibited merely because that person
is associated with a group that may have been responsible for
violent acts.

For example, a right-wing Christian cannot be held accountable
on the grounds that another right-wing Christian has bombed a
clinic in which abortions are performed. Freedom to associate
is a fundamental right because in many instances, a minority
individual’s voice is too faint to be heard alone; but the
sounding of the collective voices of that person’s political
peers increases the likelihood that the message will be heard.
Despite the mandate that under the Constitution, one’s
association with individuals who break the law should not
render him/her a criminal, the conviction of the SHAC
defendants was based on association. At trial, the government
showed nothing more than loose, circumstantial evidence
establishing a mere association between the SHAC defendants
and some individuals who were alleged to have committed
illegal acts.

In addition to the First Amendment, animal activists’ rights
under the Fourteenth and Fifth Amendments are also being
hindered. The Fourteenth and Fifth Amendments of the
Constitution mandate equal protection under the law. In other
words, in the application of laws, the government must treat
an individual in the same manner as anyone else in similar
conditions or circumstances.

Under the AETA, low-level property crimes such as trespass or
vandalism are raised to the level of a federal crime of
terrorism. To illustrate an unequal consequence, consider the
following: if you vandalize the property of a Planned
Parenthood in the name of anti-choice activism, you face
nothing more than a simple state code violation, likely a
misdemeanor; whereas if you vandalize an animal enterprise in
the name of animal rights activism, you face felony
prosecution for the federal crime of terrorism.
The AETA is thus unconstitutional because it is based on the
content of the speech and penalizes the speaker for his/her
viewpoint – when that viewpoint is the opposition of animal
use and abuse. No comparable law penalizes a speaker whose
viewpoint, for instance, opposes gun control or healthcare
reform. By singling out animal activists, the AETA violates
their constitutional right to equal protection.

Quelling essential debate

As our Supreme Court has written: “[A] function of free speech
under our system of government is to invite dispute.” The very
purpose of the First Amendment is to protect speech that is
unpopular with the community and unfavorable to the listener.
The First Amendment was not created to protect the message
espoused by the majority or by those in power, but to protect
that of the minority. Indeed, it is the open gate to
unfettered expression that leads to a progressive nation; one
built upon varying ideas and concepts that result from debate,
discussion, and resolution.

Our country was not born from agreement, but from
disagreement, and the First Amendment protects our rights to
disagree. To the extent that the government restricts a
group’s message because it dislikes the nature of that
message, the right of all groups to disagree becomes
threatened, and as a nation we suffer.

But what of the true victims? Nonhuman animals, at the mercy
of the profit-hungry entities who use and abuse them,
obviously cannot unite on their own behalf. It then falls to
humans with a conscience to advocate for them. But such
activists are being denied the basic constitutional rights
that would enable them to properly advocate for the voiceless
animals.

Sadly, then, those who simply wish for their important message
of nonviolence to be heard lack the otherwise universal
benefit of the freedom of speech and protest enshrined in the
Constitution. In a free society, animal activists deserve to
speak openly against animal abusive industries. Otherwise, we
are entering an era the Founding Fathers attempted so
vigorously to avoid – one dismally defined by “government
thought control.”

Dara Lovitz is the author of Muzzling a Movement: The Effects
of Anti-Terrorism Law, Money and Politics on Animal Activism.
Published by Lantern Books. Dara is an Adjunct Professor of
Animal Law at Temple University Beasley School of Law and the
Earle Mack School of Law at Drexel University, and the
incoming Vice Chair of the Animal Law Section of the
Pennsylvania Bar Association. She is an animal activist in
Philadelphia, Pennsylvania and a board member of Four Feet
Forward and Peace Advocacy Network.